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2020 DIGILAW 721 (GAU)

New India Assurance Co Ltd v. V. Siami

2020-10-16

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. Lalchhanliana Khiangte, the learned counsel for the appellants/claimants. Also heard Mr. Lalfakawma, the learned counsel for the Insurance Company. 2. Mac. Appeal No. 3/2018 has been filed by the appellants/claimants praying for enhancement of the compensation amount given by the MACT, Aizawl vide Judgment & Order dated 14.12.2017 passed in MACT Case No. 47/2016. MAC. Appeal No. 12/2019 is an appeal filed by the Insurance Company against the same impugned Judgment & Award dated 14.12.2017 passed by the MACT, Aizawl in MACT No. 47/2016. As such, these 2 (two) appeals are being disposed of by this common judgment & order. 3. The brief facts of the case is that on 08.05.2016, a motor vehicle (Tata Sumo) bearing Registration No. MZ-01-J-8927 belonging to the instant Respondent No. 8 and driven by one Lalrintluanga, S/o Lalnghilhlova of Ramhlun North, Aizawl, Mizoram, met with an accident at Chiehruphi village, East Jaintia Hills District, Meghalaya while proceeding towards Guwahati from Aizawl. The accident resulted in the death of two (2) persons out of the nine (9) passengers, which included the husband/father of the instant Respondents No. 1-7/Claimants. The said accident vehicle was validly insured with the instant Appellant at the time of the accident. The Respondent No. 1-7/Claimants filed a claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation before the MACT, Aizawl. After taking evidence and hearing the parties, the MACT, Aizawl passed its Judgment & Award dated 14.12.2017 in MACT Case No. 47 of 2016, whereby the learned Tribunal awarded the respondent Nos. 1-7/Claimants compensation amounting to Rs. 10,43,920/- (Rupees ten lakhs forty three thousand nine hundred twenty only) with interest @ 7% calculated from the date of filing i.e., 17.11.2016, till final payment. 4. The appellants/claimants have challenged the compensation awarded by the learned Tribunal on the ground that the compensation awarded was too meager. The learned counsel for the appellants submits that the deceased was running a garment shop, earning approximately Rs. 30,000/- per month. Even though there was no rebuttal of the evidence adduced by the claimants to the effect that the deceased was earning Rs. 30,000/- per month from his garment shop, the learned Tribunal awarded only the notional income of Rs. 3,000/- per month as the income of the deceased. He submits that the income of the deceased has to be enhanced to Rs. 30,000/- per month from his garment shop, the learned Tribunal awarded only the notional income of Rs. 3,000/- per month as the income of the deceased. He submits that the income of the deceased has to be enhanced to Rs. 30,000/- per month. In support of his submission, he has relied upon the below noted judgments of this Court and the Apex Court, which are (i) Smt. Lakhi Das and 6 Others vs. Raju Sarmah and Another,2014 3 TAC 941(Gau), (ii) RokeyaBewa & Ors. Vs. Ranu Das & Ors., (2018) 3 GauLT 279 and (iii) Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) 13 SCC 236 . 5. Mr. Lalfakawma, the learned counsel for the Insurance Company, on the other hand, submits that appellants/claimants are not entitled to any compensation, inasmuch as, rash and negligent act on the part of the driver of the accident vehicle has not been proved by the appellants/claimants, even though the claim petition had been filed under Section 166 of the M.V Act, 1988. Besides the above, the other grounds of appeal by the Insurance Company is that the learned Tribunal took the multiplier of 18, instead of 14, while computing the compensation payable to the appellants/claimants, though the deceased was 44 years old at the time of his death. He also submits that the learned Tribunal erred in awarding future prospects at the rate of 30% of the income, though the same should have been 25%, as the deceased was selfemployed. He also submits that as per the judgment of the Apex Court in National Insurance Company Limited vs. Pranay Sethi & Ors., (2017) 16 SCC 680 , the learned Trial Court could not have awarded compensation towards "loss of love and affection" and due to "loss of expectation of life". 6. Mr. Lalchhanliana Khiangte, the learned counsel for the appellants/claimants submits that the accident occurred due to the rash and negligent act on the part of the driver of the vehicle in question. However, he does not deny the correctness of the other submissions/issues raised by the counsel for the Insurance Company. 7. I have heard the learned counsels for the parties. 8. The evidence adduced before the learned Tribunal shows that the deceased had died when the Sumo in which he was travelling from Aizawl towards Guwahati, went to the left side of the road and hit a retaining wall. 7. I have heard the learned counsels for the parties. 8. The evidence adduced before the learned Tribunal shows that the deceased had died when the Sumo in which he was travelling from Aizawl towards Guwahati, went to the left side of the road and hit a retaining wall. Besides the deceased who died instantly, the Police Report dated 11.07.2016 issued by the In-Charge, Umkiang Police Patrol Post, East Jaintia Hills, Meghalaya (Ext. C-2), states that another passenger also died on the spot. The Police Report also states that accident took place due to the rash and negligent act on the part of the driver of the Tata Sumo, bearing Registration No. MZ-01 J 8927. The very fact that the driver had gone off the road on to the left side and hit the retaining wall, which resulted in the death of 2 (two) passengers, without there being any other reason for the same, like mechanical failure etc., clearly proves the fact that accident had occurred due to the rash and negligent act on the part of the driver of the Sumo vehicle. Thus, the contention of the counsel for the Insurance Company that rash and negligent act on the part of the driver of the Sumo vehicle was not proved, is belied by the fact that the sumo hit the retaining wall without there being reasonable explanation for the same. 9. As per the judgment of the Apex Court in Sarla Varma vs. DTC, (2009) 6 SCC 121 , the multiplier to be adopted for computing the quantum of compensation to be paid to the claimants in respect of a person, who dies between the ages of 41 to 45 years, is "14". As the deceased in the present case expired when he was 44 years old, the multiplier of 14 should have been applied and not the multiplier of 18, as has been used by the learned Tribunal. 10. A reading of paragraph Nos. 59.3 & 59.4 of the Apex Court judgment in the case of National Insurance Company Limited vs. Pranay Sethi & Ors. (Supra) goes to show that in case the deceased was self-employed or on a fixed salary, the future prospects of the deceased would have to be calculated by adding an additional 25% of the income of the deceased, if the deceased was between 40 to 50 years. (Supra) goes to show that in case the deceased was self-employed or on a fixed salary, the future prospects of the deceased would have to be calculated by adding an additional 25% of the income of the deceased, if the deceased was between 40 to 50 years. In the present case, the learned Tribunal committed an error in adding 30% of the income of the deceased as future prospects, while the correct addition should have been 25% of the income of the deceased. 11. In the case of National Insurance Company Limited vs. Pranay Sethi & Ors. (Supra), the Apex Court has fixed the compensation figures only on the below mentioned conventional heads, namely, loss of estate, loss of consortium and funeral expenses to be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. As no compensation amount has been fixed by the Apex Court in respect of "loss of love and affection" and "loss of expectation of life", the learned Tribunal erred in awarding compensation on the above heads. 12. With respect to the question as to whether the income of the deceased was Rs. 30,000/- per month and whether the learned Tribunal correctly accepted income of the deceased to be Rs. 3,000/- per month, the same involves questions of fact. As per the evidence of the CW-2, i.e., the son of the deceased, the average income of his father from the garment store run by him in Siaha was Rs. 30,000/- per month. CW-2 also stated that his family did not suffer any loss of income from the store after the death of his father. However, CW-2 has also stated that after the death of his father, he has been looking after the garment store as his mother needed to look after his younger siblings at home, due to which he could not pursue his studies any further. 13. The evidence of CW-1, i.e., the wife of the deceased is to the effect that they have been living in Siaha since 2003 in a rented house and that they are paying a monthly rent of Rs. 3,000/-. CW-1 also stated in the evidence that Exhibit C-23 to Exhibit C-31 are photocopies of their sale proceeds recorded in their register and that this register had been copied from the old register. 3,000/-. CW-1 also stated in the evidence that Exhibit C-23 to Exhibit C-31 are photocopies of their sale proceeds recorded in their register and that this register had been copied from the old register. However, the old register was never produced by the appellants before the learned Tribunal, to prove the income of the deceased. In the case of Sanjay Kumar vs. Ashok Kumar and Another, (2014) 5 SCC 330 , the Apex Court has held that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time. 14. In the case of Smt. Lakhi Das and 6 Others vs. Raju Sarmah and Another (Supra) and in the case of RokeyaBewa & Ors. Vs. Ranu Das & Ors. (Supra), this Court had taken the monthly income of a fisherman to be Rs. 5,000/- and the income of a daily wage laborer to be Rs. 4,500/- per month respectively. In the case of Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited(Supra), the Apex Court took the income of the coolie to be Rs. 4,500/- per month, stating that the Tribunal may not accept the claim of the claimants and may proceed to determine the possible income by resorting to some guesswork. 15. In the present case, though there is no rebuttal of the evidence given by the appellants/claimants, this Court is of the view that the claim of the claimants cannot be accepted in the absence of the old register, which purportedly contained the business transactions of the appellants/claimants. Though CW-2 has stated in his evidence that the family did not suffer any loss from the income derived from the garment store, the very fact that CW-2 had to abandon his studies shows that there was loss of income. As there is no dispute that the deceased was running a garment store and that rent for their residential accommodation was being paid, it can be expected of the deceased to be earning more than Rs. As there is no dispute that the deceased was running a garment store and that rent for their residential accommodation was being paid, it can be expected of the deceased to be earning more than Rs. 3,000/- per month. In any event, on considering the ground realities and by resorting to some guesswork, this Court is of the view that the income of the deceased should be taken as Rs. 7,000/- per month. 16. In view of the reasons stated above, the compensation payable to the appellants/claimants will be as follows:- (1) Annual income = Rs. 7000 x 12 = 84,000 (2) Addition of 25% of future prospect = Rs. 84000 x 25 = 21,000 100 (3) Loss of income = 84000+21000x14x4=11,76,000 5 (4) Loss of consortium for wife = Rs. 40,000 (5) Funeral Expenses = Rs. 15,000 (6) Loss of Estate = Rs. 15,000 Total Compensation Awarded = Rs. 12,46,000/- (Rupees Twelve Lakhs Forty Six Thousand) only. Accordingly, the Insurance Company is directed to deposit Rs. 12,46,000/- only, along with interest @ 7% per annum, from the date of filing the claim petition, i.e., 17.11.2016 till final payment of the said amount before the learned Tribunal. Any payment already made by the Insurance Company shall be adjusted against the above mentioned awarded amount. Consequently, the impugned Judgment & Award dated 14.12.2017, passed by the MACT Aizawl in MACT Case No. 47/2016 stands modified to the extent indicated above. 17. Both the appeals are accordingly disposed of. Send back the LCR.